Jurisdiction re: Implied Jurisdiction or Jurisdiction By Implication and Submission to Jurisdiction

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

On 10 July 2006, the respondent herein, whom I shall refer to as the plaintiff, issued summons in the Magistrates Court, Harare against the appellant, the defendant, claiming “sharing of property.”

Particulars of claim attached to the summons made reference to a customary union which resulted in the establishment of a universal partnership. It was accordingly prayed that it would be just and equitable for the court to order that a house shared by the parties during the partnership be sold and the proceeds jointly shared between the parties.

The defendant pleaded to the claim in a manner which both denied and accepted the existence of the customary union, the existence of the universal partnership, and the acquisition of the immovable property over which the plaintiff was claiming a right to a share.

I find that the defendant's legal practitioners filed a plea which was not only vague and embarrassing but which did not clearly set out the facts upon which the defence was based.

The errors I have referred to above notwithstanding, the matter went before a magistrate for trial, and, on 19 April 2007, the magistrate rendered a judgment in terms of which the plaintiff was awarded a fifty percent share in the immovable property.

The defendant then noted an appeal against the judgment.

The evidence adduced at the trial, in the court below, established that the parties had an unregistered customary union which resulted in the birth of one child. The parties stayed together from 1982 to 1986 when the plaintiff left the matrimonial home. During the period in question, despite the absence of a formal relationship, the parties conducted themselves and treated each other as husband and wife. Evidence was led to the effect that a customary marriage ceremony took place where the defendant paid part of the bride price (lobola). According to the plaintiff the defendant had not finished paying all of it when they separated. The defendant accepts that the parties had such a union.

There are a number of issues on which the parties differ insofar as the evidence adduced at the trial is concerned.

The case for the plaintiff is that she had failed to return home after an excursion with the defendant. As a result, she and the defendant decided to get married. The defendant's case is that he and the plaintiff had not returned home. The next day, the plaintiff was told, by her relatives, she was not acceptable at home. She moved in with him. He was then forced to live with her, and decided to pay damages for having made her pregnant.

What is not in dispute is that the parties lived together from 1982 to some time in 1986. During that period, an immovable property, known as 82 Caledon Avenue, Hatfield, was purchased through a mortgage bond secured in the name of the defendant. The defendant was responsible for settlement of the mortgage payments whilst the plaintiff took care of the other household expenses. The deposit for the house was paid by the defendant even though the plaintiff indicated, in her evidence, that she had contributed towards half of the deposit paid by the defendant.

From the evidence adduced before him, it is my view that the magistrate correctly concluded that the defendant had paid lobola for the plaintiff and the parties were married in terms of custom. The union was however never solemnised.

Although the defendant did not plead lack of jurisdiction in his plea, when closing submissions were filed on his behalf, at the close of the trial, it was argued on his behalf, that if the plaintiff's claim was premised on a tacit universal partnership then the trial court lacked the jurisdiction to entertain the matter as the value of the property in dispute was in excess of Z$5 million.

It was conceded by the defendant's legal practitioner that no evidence had been adduced on the value of the property, but, the court was urged to take judicial notice of the fact that a half share in an immovable property in Hatfield could not possibly, at the time, be valued at less that Z$5 million. It was accordingly argued that the claim should be dismissed on that basis.

The trial court was addressed on the question of the lack of jurisdiction of the court given the monetary value of the items in dispute, but, it does not appear as if the magistrate addressed his mind to this.

It had not been pleaded, but, a defendant can consent to a claim where the value of the claim exceeds that set by statute.

HH38-08 : IAN MAKONE vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and REGISTRAR-GENERAL OF VOTERS
Ruled By: UCHENA J

The first applicant is a nominated Parliamentary candidate for the Movement For Democratic Change, the (“MDC”). He will stand for the Goromonzi West House of Assembly constituency seat in Mashonaland East Province. The second applicant is the Movement for Democratic Change, a political party which fielded candidates for the Presidential, Parliamentary, Senatorial and Local Council elections.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, which is responsible for the conducting of elections in Zimbabwe. The second respondent is the Registrar-General of Voters, responsible for the registration of voters, though he does so under the control and supervision of the first respondent.

The brief facts leading to this application are as follows:

The applicants, exercising their right under section 21(4) of the Electoral Act [Chapter 2:13], which I will refer to as the Electoral Act in this judgment, requested the respondents to supply them with electronic copies of the voters roll. They supplied the respondents with compact disks onto which the voters roll was to be copied. The applicants have since been given fifty compact disks, with voters rolls copied onto them - but in a format not acceptable to the applicants. They were advised that other disks could not presently be copied because of the breakdown of the respondents' computers.

The applicants, being spurred by the approaching election day on 29 March 2008, urgently want the Voters Roll, hence the filing of an urgent application. They seek an order compelling the respondents to give them electronic copies of the voters roll in a format they have specified.

Counsel for the respondents raised a point in limine.

He submitted that this court, being a creature of statute, does not have jurisdiction to determine issues arising from the provisions of section 21 of the Electoral Act as that section does not confer jurisdiction on the Electoral Court.

He submitted that this court can only exercise jurisdiction in cases where the Electoral Act specifically confers jurisdiction on it.

He further submitted that the Electoral Act specifies instances when the court has jurisdiction, meaning, in instances where jurisdiction is not specifically conferred the legislature did not intend to confer jurisdiction. He relied on the expressio unius est exclusio alterius rule of interpretation.

Counsel for the applicants, in response, submitted that this court was created to deal with electoral matters, and, therefore, has jurisdiction to hear and determine matters arising from failure to comply with any provisions of the Electoral Act.

He submitted that the use of the words “and other matters in terms of this Act”, means and other cases arising from this Act confers jurisdiction on this court in instances where the legislature did not specifically do so.

He summed up by saying the Electoral Court was created to hear and determine electoral cases.

He pointed out various provisions in which various officials are required to act in one way or the other and asked what would happen if they did not comply. He submitted that this court should intervene and order the officials to comply as should be done in this case.

Counsel for the respondents, in reply, submitted that the applicants are not left without remedy as they can apply to the High Court which has inherent jurisdiction and can hear and determine matters for which the Electoral Court has no jurisdiction.

Creature of Statute

This court was created in terms of section 161(1) of the Electoral Act. There is no doubt that it is a creature of statute.

As a creature of statute, it can only exercise the jurisdiction conferred on it by the statute which created it. Its powers are confined within the provisions of the creating Act.

In the case of Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)…, GILLESPIE J said:

“The concept of the rule of practice is peculiarly appropriate only to superior courts of inherent jurisdiction. Any other court, tribunal, or authority is a creature of statute and bound by the four corners of its enabling legislation.”

See also the cases of Chairman, Public Service Commission and Ors v Zimbabwe Teachers Association & Ors 1996 (1) ZLR 637 (S)…,; Harare City v TA Prop (Pvt) Ltd 1994 (2) ZLR 82 (S)…,; and Gwalazimba v PG Merchandising Ltd and Anor 1993 (2) ZLR 215 (S)…, where McNALLY JA said:

“This submission is undoubtedly correct. The Tribunal is a creature of statute and can only hear appeals as provided in the Labour Relations Act 16 of 1985.”

In the case of PTC v Mahachi 1997 (2) ZLR 71 (H)…, CHATIKOBO J, commenting on the powers of a court created by statute, said:

“The Tribunal was established by section 83(1) of the Labour Relations Act [Cap 28:01] (“the Act”). Being a creature of statute, the Tribunal has no powers other than those conferred upon it by the legislature either expressly or by necessary implication.”

The important observation made by CHATIKOBO J, which I respectfully agree with, is that the Act which confers jurisdiction on the creature of statute can do so expressly or by necessary implication. This means the enabling Act must be analysed to determine whether or not the implied jurisdiction, which, in this case, counsel for the applicants seems to rely on, was conferred. The implied jurisdiction must be discovered from the provisions of the Electoral Act.

The provision in dispute

Section 161(1) of the Electoral Act provides as follows:

“(1) There is hereby established a court to be known as the Electoral Court for the purpose of hearing and determining election petitions and other matters in terms of this Act.”

There is no dispute on the meaning of the part of section 161(1) which establishes the Electoral Court. It is common cause that this court has jurisdiction to hear and determine election petitions.

The dispute arises from the interpretation of the later part of section 161(1), namely, the words “and other matters in terms of this Act.”

Most of the words in that phrase present no difficulties as their meanings are obvious. They are not ambiguous as they admit of no other meanings besides their ordinary grammatical meanings. It is the word “terms” which the parties rely on in arriving at their respective constructions of the phrase in question.

Construction of the phrase

The meaning of the phrase “and other matters in terms of this Act” can be discovered by assigning an ordinary, literal, or grammatical meaning to every word in the phrase.

In Keyter v Minister of Agriculture 1908 NLR 522…, BALE CJ said:

“It is the duty of the court to give effect to every word which is used in a statute unless necessity or absolute intractability of the language employed compels the Court to treat the words as not written. (Salmon v Duncombe & Ors 7 NLR 182).

Another cardinal rule, in ascertaining the meaning of a statute, is that in construing the words used we are to ascertain the meaning from the words themselves, and not from what we imagine to have been the intention of the legislature.”

In the case of The Queen v Bishop of Oxford 4 QBD 261, it was said a statute “should be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.”

In the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC)…, McNALLY JA said:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, 'unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency - but no further.'”

In this case, the word “and” in the phrase is a conjunction joining the other matters which this court can hear and determine to petitions, which are agreed can be heard and be determined by this court.

The word “other” simply means other than the petitions already referred to.

The word “matters” means other cases which can be heard and determined along side the petitions which it is common cause can be heard by this court.

The word “in” directs the inquirer to the source from which he or she can look for the “other matters” which can be heard and determined by this court.

The word “terms” refers to what qualifies a matter to be heard and determined by this court. It is the word whose true meaning has to be construed to determine whether or not this court has jurisdiction to hear this case….,.

The remaining words “of this Act” directs the inquirer to look within the Electoral Act for the other cases or matters which can be heard and determined by the Electoral Court.

In this case, the key word is “terms”.

Its interpretation should be based on its ordinary, literal, grammatical meaning.

In the case of Expedite Haulage (Pvt) Ltd v Scotfin Ltd 2000 (2) ZLR 113 (HC)…, CHATIKOBO J said:

“On the face of it, the contention advanced by Mr de Bourbon seems to be closer to the wording of the statute than that advanced by Mr Colgrave, and, of course, the cardinal rule of construction is that the words of a statute must be given their ordinary, literal, grammatical meaning, unless to do so would lead to a glaring absurdity.”

The same principles were expressed by the Supreme Court in the case of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S)…, where GUBBAY CJ said:

“The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the legislature as shown by the context, or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result. See Stellenbosch Farmers' Winery Ltd v Distillers' Corp (SA) Ltd & Anor 1962 (1) SA 458 (A) at 476E-F.

The same notion was expressed in another way by MARGO J in Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at 846G-H:

'Dictionary definitions of a particular word are very often of fundamental importance in the judicial interpretation of that word in a statute or in a contract or in a Will. Nevertheless, the task of interpretation is not always fulfilled by recourse to a dictionary definition, for what must be ascertained is the meaning of that word in its particular context, in the enactment, or contract, or other document.'”

The inquiry, according to these cases, must encompass the following rules of interpretation:

(a) The literal rule, to establish the ordinary, literal, grammatical or dictionary meaning of the word;

(b) Intention of the legislature to determine the contextual meaning of the word as guided by the clear intention of the legislature; and

(c) Other indicia or rules of interpretation to confirm the presence or absence of anomalies and absurdity in the resultant meaning established through the use of the above-mentioned.

The Literal Interpretation

It is trite that a court can rely on a dictionary meaning in the construction of statutes. See the cases of Endevour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) and Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

The ordinary grammatical meaning of the word “terms”, according to the Shorter Oxford English Dictionary, means:

“(i)(a) limit in space, duration, etc, that which limits the extent of anything; a limit, extremity, boundary, bound; (b) Utmost or extreme limit, end; (c) That to which movement or action is directed or tends, as its object, end or goal.

(ii) A limit in time; a space of time.

(iii) Limiting conditions pl. Conditions or stipulations limiting, what is proposed to be granted or done.”

The dominant meaning of the word “term” clearly has something to do with limiting, conditioning, bounding, and directing, whatever is to be done.

In the context of this case, this means the jurisdiction of this court, is as is limited, conditioned, bound, and directed by the Electoral Act. In simple language, the jurisdiction of the Electoral Court is as is provided by the Electoral Act.

The word “term” has acquired a well known judicial meaning.

In the Law of Contract, when one refers to the terms of a contract, the clear meaning is the conditions on which the contract is premised.

In a Will, it means as is provided by the testator in the Will.

Similarly, in an enactment, it means as is provided by the provisions of the enactment.

In the result, the literal, ordinary, plain, and technical meaning of the word “terms”, as used in section 161 of the Electoral Act, and in the context of the Electoral Act, means as stipulated, limited, or provided by the Electoral Act.

The Intention of the Legislature

Counsel for the applicants took this court through the various sections of the Electoral Act for which no court is vested with jurisdiction to enforce compliance in the event the officer who is required to act does not do so.

He argued that in such situations the Electoral Court has jurisdiction.

He obviously had in mind the implied intention of the legislature referred to in PTC v Mahachi 1997 (2) ZLR 71 (H) or the assumed or imagined intention of the legislature, referred to in Keyter v Minister of Agriculture 1908 NLR 522.

Counsel for the respondents argued that, in such circumstances, the aggrieved party should apply to the High Court which has inherent jurisdiction. He referred to section 13 of the High Court Act [Chapter 7:06].

It is correct that the High Court has inherent jurisdiction and can hear such cases, but, the issue is: does the Electoral Court have jurisdiction to hear such cases as submitted by counsel for the applicants?

This can be determined by ascertaining the expressed or implied intention of the Legislature from the construction of the sections which confer jurisdiction on the Electoral Court and a careful study and construction of the scheme of the Electoral Act.

This calls for an analysis of the sections conferring jurisdiction on this court and other courts.

In Part V of the Electoral Act, aggrieved parties are, in terms of section 25(6), referred to a designated magistrate for the province in which the affected constituency is situated for redress in the case of a dispute over claims for transfer of registration.

In Part VI, sections 27(3)(a) and (b), 28(3)(b) and 29 of the Electoral Act confers jurisdiction on a designated magistrate to hear appeals against objections by the Constituency Registrar or a voter.

Section 30(1) to (4) provides for the submission of a stated case by the designated magistrate to a judge of the High court for his opinion.

In Part X, section 44(7) confers jurisdiction on the Electoral Court to hear and determine petitions against the decision of the presiding officer over the election of the Council of Chiefs and of President and Deputy President of the Council of Chiefs and other Senator Chiefs.

In Part XI, section 46(19)(b) and (c) confers jurisdiction on the Electoral Court to hear and determine appeals from the Nomination Court.

In Part XIII, section 66(2) provides for the presence of an Electoral Court Judge at the drawing of lots to determine the winning candidate. Section 66(4) confers jurisdiction on the Electoral Court to hear and determine a petition against the decision of the Chief Elections Officer. Section 70(3)(b), (4), (5), and (8) confers jurisdiction on the Electoral Court to determine issues and make orders in relation to the destruction or preservation of electoral documents.

In Part XIV, section 81 confers jurisdiction on the High Court to, on convicting a person for inducing any person to obtain a ballot paper and influencing him or her to vote in favour of a particular candidate, to declare the convicted person disqualified from voting in any election for a period not exceeding five years.

In Part XVII, section 111 confers jurisdiction on the Electoral Court to hear and determine petitions on an undue return or an undue election of a person to the office of President, while section 112A as read with the Fifth Schedule, confers jurisdiction on the Chief Justice to preside over the electoral college for the election of a President.

In Part XVIIIA, in sections 133E and 138, confers jurisdiction on the High Court to impose additional punishment, of a civil nature, to a person it will have convicted for intimidatory practices. The same jurisdiction is conferred on the High Court in terms of section 150. Identical jurisdiction is conferred on the Electoral Court by section 155, but after the hearing of a petition after the election. It is clear the legislature conferred jurisdiction on two different courts on this aspect. The High Court deals with intimidatory and illegal practices before the elections, while the Electoral Court deals with the same situations and can impose the same additional penalties after the elections.

In Part XXI, sections 155 to section 158 confer jurisdiction on the Electoral Court to hear and determine petitions and applications and make appropriate orders specified in the various sections.

In Part XXII, section 161 establishes the Electoral Court, and, in subsection (1) and (2) specifies what it can or cannot do.

In Part XXIII, section 167 provides for the presentation of election petitions to the Electoral Court. Section 170(1) confers jurisdiction on the Electoral Court to hear and determine objections on the sufficiency of the security provided by an applicant to an election petition. Section 171(1) confers jurisdiction on the Electoral Court to hear and determine election petitions. Sections 177, 179, 180, and 181 provide for the other powers the Electoral Court may exercise in the hearing of petitions.

In Part XXIV, section 183 confers jurisdiction on the Electoral Court to hear and determine applications by persons convicted on perjured or false evidence, for the removal of the incapacity imposed at the time of conviction.

An examination of the sections conferring jurisdiction on the various courts clearly demonstrates the legislature's deliberate intention as to which court it intended to deal with which situation.

There is no doubt in my mind that where the legislature intended to confer jurisdiction on this court it did so by conferring it through a specific provision in the Electoral Act. There is clearly no room for the conferring of jurisdiction by implication.

The legislature's specific mention of the instances where this court has jurisdiction means where it did not confer jurisdiction it intended not to confer jurisdiction.

This would support counsel for the respondents submission that the application of the expressio unius est exclusio alterius rule to the specific conferring of jurisdiction in some instances means this court has no jurisdiction where it is not specifically conferred.

In the case of Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (SC)…, GUBBAY CJ said:

“To ascribe a sensible meaning to subs (5) and to avoid superfluity necessitates the legitimate recourse of construing the general words 'any sentence' in subs (6) as excluding the specific reference to 'a sentence of death' in subs (5). This is no more than an application of the rule embodied in the maxim 'expressio unius exclusio alterius.' It draws attention to the fairly obvious linguistic point that in many contexts the mention of some matters warrants an inference that other cognate matters were intentionally excluded. See MAXWELL on The Interpretation of Statutes 12ed at p293.”

In the case of Eagle Insurance Co. Ltd v Grant 1989 (3) ZLR 278 (SC)…, KORSAH JA, commenting on the operation of the maxim, said:

“A rule which is variably resorted to in the interpretation of statutes, the expressio unius rule, is that the mention of one or more things of a particular class may be regarded as silently excluding all other members of the class.”

The use of the words “may be regarded as silently excluding”, leaves room for the inapplicability of the rule in some cases. This is confirmed in the case of Chivinge v Mushayakarara & Anor 1998 (2) ZLR 500 (SC); at p506E-F GUBBAY CJ said:

“The same result is arrived at, so it seems to me, by a cautious application of the maxim expressio unius est exclusio alterus: see Taylor v Prime Minister & Anor 1954 SR 94 at 165; 1954 (3) SA 956 (SR) at 965B-D; R v Ndhlovu (1) 1980 ZLR 96 (G) at 100A-D; Hewlett v Minister of Finance & Anor 1981 ZLR 571 (S) at 596C-E; National Automobile & Allied Workers Union v Borg-Warner 1994 (3) SA 15 (A) at 26H–I.

The specific mention of the instances of permissible discharge of termination on notice by a permanent employee, to my mind, leads to the unavoidable inference that it was not the intention of the parties to the contract to allow termination on notice of a permanent employee.”

The need to exercise caution before relying on the expressio unius rule is because a conclusion based on it is a product of a logical deduction inferred from the specific mention of the other thing being an implied exclusion of that which was not mentioned.

In the case of Commissioner of Taxes v F Kristiansten (Pvt) Ltd 1994 (1) ZLR 412 (SC)…, the Supreme Court, commenting on the nature of the rule, said:

“It may be that one cannot rely on that uncertain principle of interpretation known as the 'expressio unius exclusio alterius' in this situation.”

The uncertainty of the expressio unius est exclusio alterius rule was again commented on by the Supreme Court in the case of Davies and Ors v Minister of Lands, Agriculture & Water Development 1996 (1) ZLR 681 (SC)…, where GUBBAY CJ said:

“Mr Anderson's counter to this argument was that the principle expressio unius est exclusio alterius was one of limited application to be applied with great caution. This is of course true, but, whereas here something which is not on the face of it acquisition is specifically stated so to be, there is a strong indication that acquisition is to otherwise be given its ordinary meaning.”

In the present case, a careful reading of the sections of the Electoral Act conferring jurisdiction on this court and other courts, together with section 161 of the Electoral Act, whose interpretation restricts the search for jurisdiction within the Electoral Act, the express mention of the instances where this court has jurisdiction is a clear indication that where no jurisdiction was specifically conferred the legislature did not intend to confer jurisdiction on this court. In the context of the whole Act, the words “and other matters in terms of this Act” means and other matters in which jurisdiction has been conferred by provisions of this Electoral Act.

Other indicia

Counsel for the applicants referred this court to section 157 of the Electoral Act and submitted that reference in it to “petitions and applications” when no specific jurisdiction in terms of the Act is conferred on this court to hear and determine petitions means applications such as the applicant's are the “other matters” which can be heard and be determined by this court.

This tends to suggest that the literal meaning, as established above, should include applications as provided in section 157.

The expressio unius est exclusio alterius rule would not be applicable as the mentioning of applications, without providing for them in any specific sections of the Electoral Act, would leave this court with jurisdiction in circumstances mentioned by counsel for the applicants. That would not be consistent with the plain meaning of the phrase “and other matters in terms of this Act.” It would entitle this court to depart from the plain, literal, and grammatical meaning to avoid the inconsistency or the absurdity: see the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (SC).

Counsel for the first respondent submitted that the word “application” means petition. He therefore argued that its being mentioned in section 157 is of no significance. He relied on section 15(2) of the Interpretation Act [Chapter 1: 01] which provides as follows:

“Any reference in an enactment to a petition to a court shall be construed as a reference to an application to the court or to a judge, magistrate, or other judicial officer of the court, made in accordance with rules of the court.”

Counsel for the first respondent's submission is persuasive but does not explain why the legislature would convey the same concept using two different words of the same meaning in succession. This would suggest that one of the words is superfluous. If the use of both words was out of caution then why would the legislature use the word “or” between them suggesting that it should be one or the other?

A careful reading of section 157 of the Electoral Act is called for. It provides:

“(1) When it appears to the Electoral Court, either on application or upon an election petition, that –

(a) Any act or omission of a candidate at an election or of his or her chief election agent or of another agent or person, which but for this section would be an illegal practice, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; and

(b) By reason of the circumstances it would be just that the candidate or his or her chief election agent or other agent or person, or any of them, should not be subject to any of the consequences under this Act of the said act or omission;
the Electoral Court, may make an order allowing the act or omission to be an exception from the provisions of this Act which would otherwise make the act or omission an illegal practice, and thereupon the candidate, agent or person shall not be subject to any of the consequences under this Act of the said act or omission.

(2) Where application is made for relief in terms of subsection (1), the Electoral Court, before hearing the application, shall be satisfied that reasonable notice of the application has been given in the constituency or area in which the election was held.”

The clear meaning of section 157 of the Electoral Act is that the Electoral Court, may, during the hearing of a petition or when an application is made to it in terms of sub-section (2), make an order allowing an otherwise illegal practice an exception to the provisions of the Electoral Act.

The provisions of section 15 of the Interpretation Act are therefore not applicable in this case.

Subsection (2) specifically provides for the making of an application to the Electoral Court, and confers jurisdiction on it to hear and determine such applications.

I, with respect, do not agree with both counsel for the applicants and counsel for the respondents' respective interpretations of section 157 of the Electoral Act: therefore, the interpretation of the words “and other matters in terms of this Act,” as discussed above, remains unaffected by the provisions of section 157 of the Electoral Act.

Even if subsection (2) of section 157 had not clarified the issue, there are other sections of the Electoral Act which confer jurisdiction on this court to hear and determine applications.

Section 179(2) of the Electoral Act provides for an application for substitution of a petitioner. Section 183 provides for an application to the Electoral Court for the removal of any incapacity imposed upon conviction based on perjured or false evidence.

It is therefore beyond doubt that the instances in which this court has jurisdiction to hear and determine applications are specifically provided for in the Electoral Act.

As already indicated, that means all the instances in which the legislature intended to confer jurisdiction on this court are specified leaving no room for this court to assume jurisdiction in circumstances referred to by counsel for the applicants.

Counsel for the respondents sought costs on the legal practitioner and client scale against the applicants on the basis that his clients were unnecessarily dragged to a court which does not have jurisdiction to hear the application.

It is true that, with careful reading of the Electoral Act, the applicants should have known that they were suing the respondent in a court which did not have jurisdiction. It is however apparent from counsel for the respondents own failure to appreciate that the Electoral Act confers jurisdiction on this court to hear applications that the Electoral Act, as recently amended, is still to be fully understood by legal practitioners - especially those who infrequently appear before this court.

There is need for guidance through the judgments of this court.

I can therefore not grant punitive costs in circumstances which clearly call for the guidance of this court.

In the result, the applicant's application is dismissed with costs.

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

The second preliminary point of law that was raised pertaining to both matters was that of the jurisdiction of the court. Jurisdiction of the Court Counsel for the respondent raised the issue of lack of jurisdiction on the part of this court to hear the matters before it as a late submission, not even mentioned in his heads ...

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

This appeal, from the judgment of the Labour Court, raises the issue whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a Collective Bargaining Agreement between the parties.Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be ...

This appeal, from the judgment of the Labour Court, raises the issue whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a Collective Bargaining Agreement between the parties.

Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be negotiated by the parties mentioned therein as the following provisions demonstrate:

“PART X

COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY TRADE UNIONS AND EMPLOYERS ORGANIZATIONS

74 Scope of Collective Bargaining Agreements

(1) This Part shall apply to collective bargaining agreements negotiated by registered trade unions, employers, and employers' organizations or federations thereof:

Provided that nothing in this Part contained shall prevent an unregistered trade union or employers' organization from negotiating a collective bargaining agreement.

(2) Subject to this Act and the competence and authority of the parties, trade unions and employers or employers organizations may negotiate collective bargaining agreements as to any conditions of employment which are of mutual interest to the parties thereto.

(1) Without derogation from the generality of subsection (2), a collective bargaining agreement may make provision for —

(a) Rates of remuneration and minimum wages for different grades and types of occupations;

(b) Benefits for employees;

(c) Deductions which an employer may make from employees' wages, including deductions for membership fees and union dues, and deductions which an employer may be required or permitted by law or by order of any competent court to make;

(d) Methods of calculating, or factors for adjusting rates of pay, and the dates, times and modes of payment;

(e) All issues pertaining to overtime, piece-work, periods of vacation and vacation pay and constraints thereon;

(f) The demarcation of the appropriate categories and classes of employment and their respective functions;

(g) The conditions of employment for apprentices;

(h) The number of hours of work and the times of work with respect to all or some of the employees;

(i) The requirements of occupational safety;

(j) The maintenance of, and access by the parties to, records of employment and pay;

(k) Procedures for dealing with disputes within an undertaking or industry;

(l) Housing and transport facilities, or, in their absence, an allowance for the same;

(m) Measures to combat workplace violence and handling its aftermath…,.”…,.

The list of subjects set out in subsection (3) are suggestions as to matters that may be included by the parties in a Collective Bargaining Agreement. Thus, the parties may elect to include all or any of the suggested topics in their agreement.

The point being made is that the statute does not confer a right on any of the parties, without agreement of the others, to have included in their Collective Bargaining Agreement, any of the subjects on the list.

This is understandable since a Collective Bargaining Agreement is a contract between the parties to it and only they can set the terms by which they will be bound. It follows that any benefits to be included in the Collective Bargaining Agreement must be agreed by the parties. They cannot be imposed by the Arbitrator, or indeed any court, in the same way that a court cannot write a contract for the parties.

What occurred in this case was totally improper. The Labour Officer, the Arbitrator, and the Labour Court all missed the point.

THE BACKGROUND

The proceedings on record commenced on the 27th June 2007, when the General Secretary of ZARWU (it is not clear whether these are the initials of the 4th respondent (Zimbabwe Amalgamated Railwaymen Union) or 1st respondent (Zimbabwe Railways Artisans Union)) wrote to the Designated Agent of the Railway Employment Council in the following terms:

“Dear Sir

RE: DISPUTE HOUSING ALLOWANCE AND EDUCATIONAL ASSISTANCE

On the full council meeting on 21 June 2007 there was disagreement between Labour and Management on the above issue.

Labour, through ZARWU, are referring the matter to your office for Concilliation (Labour Act Section 63).

We wait to hear from your office.”

Thereafter, all the parties were notified of a hearing to be held on 12 July 2007 and later postponed to 19 July 2007.

On 19 July 2007, the parties appeared before a conciliator. The latter required each of the parties to state his position on the matter and enquired as to whether any of the parties had varied its position on the dispute. The parties had not. He therefore issued a Certificate of No Settlement, and, by agreement with the parties, referred the matter to an arbitrator for compulsory arbitration. The terms of reference were agreed to be whether the respondents were entitled to:

(a) Housing allowance, and, if so, the quantum thereof (the claim was stated at $7,500,000 per month);

(b) Education allowance calculated at Government school rates, whether boarding or day school for up to a maximum of three children or registered dependents;

(c) The effective date of such award.

The Arbitrator appointed to deal with the matter was Mr Chinjeruke.

The point was taken before the Arbitrator, in limine, that the matter was not properly before him since no conciliation had taken place. That point was dismissed on the basis that the parties could, in terms of section 93(1) of the Labour Act [Chapter 28:01], agree, and did in fact agree, to refer the matter to arbitration.

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

The applicant avers that the magistrate, (third respondent) had misdirected himself in stating that he had been conferred with jurisdiction by virtue of an implied authority stemming from the provisions of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. The applicant argues that the third respondent grossly misinterpreted the law with regards jurisdiction. ...

The applicant argues that the third respondent grossly misinterpreted the law with regards jurisdiction. He must work within the four corners of the enabling Act – he cannot go beyond the prescribed limits without specific enabling statutory provisions.

The first respondent further argued that the Magistrates Court has no inherent jurisdiction and that therefore the authorities cited by the applicant are irrelevant. Rather, the correct position is that the magistrate's jurisdiction in cases such as the present derives from section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. The provisions of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] are peremptory – the court shall issue an order to evict the person so convicted.

The thrust of the applicant's argument is that while conceding that the provisions of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] empower the magistrate to issue an eviction order upon conviction, the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] does not further empower the magistrate with authority to revisit the case and entertain an application for execution of that order pending appeal. Section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] reads as follows -

“A court which has convicted a person of an offence in terms of subsection (3) or (4) shall issue an order to evict the person convicted from the land to which the conviction relates.”

Does this provision exclude the power to execute the magistrates' own orders given in terms thereof?

In the absence of any provision to the contrary the power to grant such orders includes the power to execute them. In this regard, the Magistrates Court is empowered to execute its own judgments by virtue of the general provisions of the Magistrates Court Act [Chapter 7:10] which provisions remain relevant notwithstanding the fact that the magistrate is dealing with a matter prescribed under a different statute, namely the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

Once it is accepted that in terms of section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] the magistrate has the jurisdiction to give the order he gave and that jurisdiction, of necessity, includes the power to execute the orders so granted, it must also be accepted that where an appeal is lodged or indicated, the magistrate may, of his own accord, or upon application, order execution pending appeal if he is of the view that the appellant's grounds of appeal are frivolous and without merit.

The provisions of section 40 (3) of the Magistrates Court Act [Chapter 7:10] are clear.

I agree, therefore, with the magistrate when he contends that the powers to order execution flow and follow from the powers conferred upon him to grant such orders in the first place. These powers are exercisable throughout the subsistence of such order. Where, at law, the execution of such order may have been suspended by the noting of an appeal, the magistrate retains the discretion to order execution despite the noting of the appeal if he is satisfied that the appeal has been noted for purposes of delay.

Section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] refers to “any court.” It does not distinguish between superior and subordinate courts, the former being of unlimited or original jurisdiction. Thus, the powers given under section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] apply with equal efficacy, regardless of the level of jurisdiction of any such court as provided for in any other legislation.

The legislature, in its wisdom, has empowered “any court” including the Magistrates Court (whose physical presence throughout the country is much more widespread than that of the High Court) to be the vehicle through which the provisions of section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] shall be executed. If the legislature had intended otherwise, appropriate provision would have been made.

I am therefore of the view that the third respondent had jurisdiction to entertain the application to execute the eviction order pending appeal and to determine the fate of such application.

Accordingly, it is ordered that the application be and is hereby dismissed with costs.

HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA
Ruled By: HLATSHWAYO J and MAWADZE J

The respondent had also, as per the acknowledgement of debt, consented to the jurisdiction of the Magistrates Court.

SC81-14 : JORAM NYAHORA vs CFI HOLDINGS ( PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

In any event, as the court a quo found, by consenting to the provisional order, the appellant had acquiesced in the jurisdiction of the High Court to grant it.

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

Counsel for the applicant, whilst conceding that the defendant is a peregrinus, he argued that he submitted himself to the jurisdiction of the court by responding to the application. Did the respondent submit to the jurisdiction of the court? Submission to jurisdiction can take many forms which can run from a formal consent contained in a written contract to ...

Counsel for the applicant, whilst conceding that the defendant is a peregrinus, he argued that he submitted himself to the jurisdiction of the court by responding to the application.

Did the respondent submit to the jurisdiction of the court?

Submission to jurisdiction can take many forms which can run from a formal consent contained in a written contract to a consent from the bar. The applicant is relying on implied consent. The authors HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts of South Africa, 5^th Ed Vol 1…, state:

“A submission to jurisdiction must be clear so as to establish it as a legal certainty. Failure to defend legal proceedings instituted does not necessarily constitute submission to the jurisdiction of the court, nor can the fact that a defendant contested another issue, in addition to the issue of jurisdiction, be construed as a clear tacit acceptance by the defendants of the court's jurisdiction.”

In casu, the respondent filed a Notice of Opposition and Heads of Argument. He did not contest the court's jurisdiction in those pleadings. It is only on the day of hearing that the respondent raised the issue in limine.

In Mashinen, Grommer, Gribtt & Co. H.G. v Trisave Engineering Machinery Supplies (Pty) Ltd 2003 (6) SA 69 (C)…, VAN REENEN J stated the following -

“C.F. FORSYTH, Private International Law, 3^rd Ed, at 269, where he stated there are no decided cases in which submission by conduct has been accepted or rejected as a means of conferring international competence on a foreign court which it would otherwise not possess. Taking guidance from matters of internal competence, where submission by conduct is not readily inferred, but it is required that the defendant's conduct 'must be of such a nature that the court is able to say that it is consistent only with acquiescence' (per VIEYRA AJ in DuPreez v Phillip King 1963 (1) SA 80 1 (W) at 803 C) he submits that courts should exercise caution and not find that there has been submission to jurisdiction unless the parties have clearly accepted the foreign court's jurisdiction; for example, where a defendant pleads to the merits without contesting a court's jurisdiction.”

VAN REENEN J…, quoted CONRADIE J…, with approval in Supercot Incorporated v Two Oceans Marince CC 2001 (4) SA 27 (C)…, where he stated that the enquiry into whether there has been submission by conduct concerns the defendant's state of mind as evidenced by his/her/its conduct.

Looking at the circumstances of this matter, it is my view that the respondent submitted to the jurisdiction of the court. In our jurisdiction, we have the procedural regime where a plea of lack of jurisdiction is adjudicated upon in limine prior to the adjudication of the merits of the matter. If the respondent did not intend to submit to the jurisdiction of the court he would have raised the issue in limine in his Notice of Opposition. His conduct, in casu, clearly points to a person who had no intention, whatsoever, to contest the jurisdiction of the court. It came as an after thought - after he had pleaded to the merits of the matter.

I will therefore make a finding that the court has jurisdiction in this matter.

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O.
Ruled By: MATHONSI J

The first respondent…, stated that he is opposed to the application…, because the applicant and himself attended at the office of the Secretary of Mines on 19 November 2015 and 3 December 2015. If the applicant was objecting to the jurisdiction of the Secretary he should have done that long back and not to do so ...

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

Counsel for the respondents also notes that the appellant responded on 16 March 2017 to the Retrenchment Board's directive for further submissions to be made. The appellant thereby accepted that the directive complied with the law. If it believed that its application had been granted, it ought to have protested and refused to comply with the ...

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b)...,.

(c)...,.

(d)...,.

(e) Whether the Frankfurt award was unenforceable ab initio in the absence of any executable assets belonging to the defendant in Germany....,.

Enforceability without Executable Assets

Under the loan agreements in question (Article 10.3 of Loan No. F2971 and Article 9.3 of Loan No. F3040) the parties expressly agreed that the place of jurisdiction for all litigation in connection with the loans would be Frankfurt/Main in the Federal Republic of Germany.

It is therefore perfectly clear that the defendant specifically submitted to the jurisdiction of the Frankfurt court.

The defendant avers that the Frankfurt judgment could not have been enforced by execution in Germany as the defendant had no executable assets in that country, at that time, to satisfy the judgment in whole or in part.

In this regard, counsel for the defendant contends that the mere submission of the defendant to the jurisdiction of the Frankfurt court is not enough to render its judgment effective.

Counsel for the plaintiff counters that submission to the Frankfurt court is sufficient and that the defendant should have raised the effectiveness of its ruling before that court and not in the present proceedings.

The principle of effectiveness that underlies the law of jurisdiction, in its absolute sense, is that the court will only have jurisdiction if it controls the person or property of the defendant, as the mere consent or submission of the defendant to the jurisdiction of the court affords no absolute guarantee that the court's judgment will be effective: see FORSYTH: Private International Law (4th ed.)…,.

However, as is further explained by the learned author, at pp.215-216:

“Today, the doctrine of effectiveness is artificial and conceptual rather than realistic.

And, indeed, even those cases that would most severely restrict submission do not reject it altogether. Moreover, submission is widely recognised in legal systems across the world as a ground of international competence justifying the enforcement of the judgment of a foreign court to which the defendant has submitted. Thus, on the whole, a judgment based on submission will be effective. It is submitted that effectiveness in this slightly attenuated sense should suffice to justify the exercise of jurisdiction on the grounds of submission. The fact is that most other legal systems…, give wide recognition to and encourage submission as a ground of jurisdiction…,. It is to the benefit of international commerce that this should be so….,. As economic development in Southern and Central Africa proceeds, there is no reason, other than archaic restrictions on the exercise of jurisdiction, why the local courts should not develop an international role akin to that of the Commercial Court in London.”

Similar sentiments predicated on policy grounds were expressed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…, where ZULMAN JA observed that:

“There are compelling reasons why…, in this modern age, traditional grounds of international competence should be extended, within reason, to cater for itinerant international businessmen. In addition, it is now well established that the exigencies of international trade and commerce require 'that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto'.”

The enforcement of a foreign judgment requires that the foreign court had jurisdiction, in the international sense, according to the principles of our law on the jurisdiction of foreign courts: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,; SCHULZE: International Jurisdiction in Claims Sounding in Money 2008 20 SA MERC. LJ…,.

Thus, the mere fact that the foreign court may have had jurisdiction under its own laws is not conclusive: see Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…,.

The rules for assessing the international jurisdiction of a foreign court are expounded by POLLAK: The South African Law of Jurisdiction (1937)…,. The overall position is summarised…, as follows:

A foreign court has jurisdiction to entertain an action for a judgment sounding in money against a natural person if, at the time of the commencement of the action, the defendant is physically present in the State to which the court belongs or is domiciled or resident within that State or has submitted to the jurisdiction of that court.

According to POLLAK: The South African Law of Jurisdiction (1937) there are no other grounds for jurisdiction.

This summation was cited with approval in Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…, and followed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…,.

With specific reference to submission as a basis of jurisdiction, the position is reiterated by PISTORIUS: Pollak on Jurisdiction (2nd ed. 1993)…,:

“Submission has been accepted, in our law, as an acceptable basis for international competence.

As in the case of local jurisdiction, submission may be by way of agreement or by a defendant acquiescing by his conduct in such jurisdiction after litigation against him has commenced. In the case of agreement, this may be pursuant to a contract between the parties which specifically provides for submission in the event of disputes or by an express or tacit submission after litigation. Submission by conduct may be difficult to prove, and…., the conduct must be of such a nature that it is consistent only with acquiescence.”

Again, in relation to claims sounding in money, FORSYTH: Private International Law (4th ed.)…, encapsulates the modern law as follows:

“It is widely recognised, by both writers and the decided cases, that submission by the defendant to the jurisdiction of the foreign court grants to that court international competence even if it would not otherwise enjoy that competence.”

As regards submission by agreement, the learned author…, states that:

“In accordance with the general principles of the law of contract, parties may, either expressly or impliedly, enter into binding agreements to submit their dispute to a particular court which might otherwise lack jurisdiction…,; express submission where the parties agree to submit in the ipsissma verba of their contract; provided such submission is valid under its proper law, such an agreement is undoubtedly effective.”

Having regard to the foregoing cases and commentaries, I conclude that a defendant's express submission to the jurisdiction of a foreign court suffices, ipso facto, and without any further jurisdictional ground, to endow that court with the requisite international competence, enabling and allowing the recognition and enforcement of its judgments under the common law.

I am fortified in that conclusion by the policy considerations that I have cited earlier, which are obviously germane to any analysis of international competence according to the principles of our law governing the jurisdiction of foreign courts.

In that context, the tenets of international comity, informed by the inexorable trans-nationalisation of trade and commerce, dictate that our courts should be astute to extend, rather than constrict, the scope of international jurisdiction and competence as regards claims sounding in money.

On that basis, there can be no objection to a more liberal approach that recognises the enforceability of a foreign judgment, founded on the submission of the defendant, whether it be a natural person or an artificial entity, to the jurisdiction of the foreign court in question.

I accordingly take the view, in keeping with principle as well as policy, that the explicit contractual submission of the defendant in casu, to the jurisdiction of the Frankfurt court, suffices for the purpose of recognising its judgment.

This is so regardless of the fact that the defendant may or may not have had any executable assets in Germany at the time of the commencement of the plaintiff's action in Frankfurt.

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

Seven days after the declaration, on 3 August 2013, of the results of the Presidential election (hereinafter referred to as “the election”) held on 31 July 2013, showing Robert Gabriel Mugabe (hereinafter referred to as “the first respondent”) as the winner of the election, Morgan Tsvangirai (hereinafter referred to as “the petitioner”), who was one of the candidates contesting the election, lodged with the Constitutional Court (hereinafter referred to as “the Court”) a petition challenging the validity of the election under section 93(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as “the Constitution”).

The petitioner used fourteen grounds for challenging the validity of the election which he alleged constituted corrupt practices committed by the first respondent through his agents or by third parties with his knowledge.

He also alleged irregularities which he said were committed by the second and fourth respondents, who were responsible for conducting the election.

It was the petitioner's averment, that, the said acts, which were allegedly committed in violation of the provisions of the Electoral Act [Chapter 2:13] (hereinafter referred to as “the Electoral Law”), had materially affected the validity of the election.

He prayed for an order declaring the election invalid and setting it aside and for a fresh Presidential election to be held within sixty days after the determination.

The respondents opposed the petition on the ground, that, the petitioner had lodged it when he had no evidence to prove the allegations of commission of corrupt practices and irregularities in the conduct alleged against them. They prayed for dismissal of the petition with costs.

The petition was set down for hearing at 10am on 17 August 2013.

At 17:25 hours, on 16 August 2013, the petitioner filed, with the Constitutional Court, a document titled “Notice of Withdrawal of the Petition” (hereinafter referred to as “the notice of withdrawal”). The notice of withdrawal was accompanied by an affidavit in which the petitioner gave reasons for wanting to withdraw the petition.

The reasons confirmed the accusations, by the respondents, that, the petitioner had lodged the petition and made the allegations of commission by them of corrupt practices and irregularities in the election when there was no evidence to support them.

The relevant parts of the affidavit of the purported withdrawal read as follows:

“1. It is with deep regret and sadness that I find myself having to depose to this affidavit which I present for purposes of explaining the reasons behind the withdrawal of the Election Petition just filed by my legal practitioners at my specific instance.

2. It is common cause that I filed a petition challenging the outcome of the Presidential Election in terms of its processes and outcome.

3. In the petition, various allegations regarding the conduct of the election by the second respondent were made, which allegations touch on the credibility and authenticity of the voting material which is currently under the control of the second and third respondents.

4. In order to gain access to voting material and other documents and information two urgent chamber applications were filed under case EC27/13 and EC28/13. Whilst arguments were advanced on the points in limine, judgment was indefinitely reserved in the matter. The merits have not been heard.

5.– 6…,. 7. As at the time of deposing to this affidavit (15:43 hours on Friday 16th August 2013), the judgment(s) in the applications for the materials had not been delivered. This, in my view, seriously handicaps my prosecution of the petition and it has rendered it impracticable for me to proceed with same.

8. I draw attention to the fact, that, I had specifically indicated, in my petition, that such material would be needed for the purposes of prosecuting the petition. The fact that I still do not have the material means that I cannot meaningfully prosecute my petition.

9.– 11…,. 12. I am also aware, that, the first respondent addressed crowds at the National Heroes Acre during the Heroes Day celebration on 12 August 2013. I am further aware, that, he made further unsavoury comments in which he criticised my decision to approach this Court. The fact that the CHIEF JUSTICE was in attendance on the day and the fact that he is expected to preside over my petition does very little to inspire my confidence in the possibility of my enjoyment of the constitutional right to a fair hearing.

In this regard, I make no imputation, gratuitous or otherwise, about the integrity of the honourable CHIEF JUSTICE. My concern is with the conduct of the first respondent.”

The question that arose from the proposed withdrawal of the petition was whether or not section 93 of the Constitution, which is a complete Code on matters relating to a petition or application challenging the validity of an election of a President lodged with the Constitutional Court, under subsection (1), provided for withdrawal of the petition or application as a right.

In the notice of withdrawal, and the affidavit accompanying it, the petitioner made no reference to a provision of the Constitution under which a right to withdraw a petition or application lodged with the Constitutional Court under sub-section (1) of section 93 of the Constitution is conferred....,.

Mr Mehta, representing the petitioner, argued, that, section 178(1) of the Electoral Act [Chapter 2:13] (the Electoral Law) provides a right to withdraw at any time an election petition presented by a candidate to the Electoral Court complaining of an undue election or an undue return. He argued that the provisions of section 178(1) of the Electoral Law were applicable to a petition lodged with the Constitutional Court under section 93 of the Constitution.

The legal practitioners for the respondents, and the Attorney-General, argued on a constitutional principle, that, every act claimed as a right under the Constitution must be traceable to a particular provision of the Constitution. The only section of the Constitution in terms of the provisions of which a right to withdraw a petition lodged with the Constitutional Court would have been given to a petitioner is section 93 of the Constitution.

The contention was, that, as section 178 of the Electoral Act (the Electoral Law) concerned election petitions presented to the Electoral Court, its provisions were not applicable to a petition or application lodged with the Constitutional Court under section 93(1) of the Constitution.

The argument was that the use of the words “subject to this section” at the beginning of section 93 of the Constitution makes the provisions thereof exclusive and overriding in effect on subject-matters relating to the preparation, lodgment, hearing, and disposition of a petition or application lodged with the Constitutional Court under subsection (1).

At the end of the hearing of the parties on the question of the legality of the proposed withdrawal of the petition, the Constitutional Court agreed with the respondents, that, the Constitution contained no provision for withdrawal of a petition or application lodged with it under section 93(1) of the Constitution. It held that the petitioner had no right to withdraw the petition.

The hearing of the petition then commenced.

Mr Mehta indicated that he had no meaningful submissions to make on the merits of the petition. He said his instructions were not to prosecute the petition any further than what was contained in the papers filed of record.

Counsel for the first respondent argued, that, the petition was the weakest document ever lodged with the courts in the country challenging the validity of an election.

Advancing the position taken by the first respondent in the opposing affidavit, he argued that the petitioner knew, at the time of preparation and lodgment of the petition, that, he had no evidence to prove the serious allegations of commission of corrupt practices he made against the first respondent. He adhered to the written heads of argument which addressed each of the allegations of commission of corrupt practices made against the first respondent.

Counsel for the second, third, and fourth respondents, made reference to the contents of the opposing affidavit deposed to by the third respondent on behalf of the second respondent and supporting documents filed of record to show that the accusations of commission of irregularities in the conduct of the election by the second, third, and fourth respondents were unfounded.

Counsel for the Attorney-General advanced the same argument as the respondents, to the effect, that, the petition was lodged without any evidence to support the allegations on which the validity of the election of the first respondent as President of Zimbabwe was being challenged.

After hearing submissions from the respondents' legal representatives, the petitioner having indicated, through his legal representative, that, he had no meaningful submissions to make on the merits of the petition, and, having evaluated and assessed all the evidence presented and contained in the papers, the Constitutional Court came to the conclusion that the petition had no merit.

Consequently, the petition was dismissed, and, an order made, on 20 August 2013, in the following terms:

“IT IS DECLARED:

1. THAT the Zimbabwe Presidential election held on 31 July 2013 was in accordance with the laws of Zimbabwe and in particular with the Constitution of Zimbabwe and the Electoral Act [Chapter 2:13];

2. THAT the said election was free, fair, and credible. Consequently, the result of that election is a true reflection of the free will of the people of Zimbabwe who voted; and

3. THAT Robert Gabriel Mugabe was duly elected President of the Republic of Zimbabwe and is hereby declared the winner of the said election.”

It was indicated, at the time, that, reasons for the decision, that, section 93 of the Constitution does not provide for a right of withdrawal of a petition or application lodged with the Court under subsection (1) challenging the validity of an election of a President and for the order made on 20 August 2013 would be given in due course.

These are the reasons.

To put the reasons for the decision on the question of the legality of the proposed withdrawal of the petition into proper context, it is necessary to set out the provisions of the relevant sections of the Constitution.

Section 167(2)(b) of the Constitution provides:

“167 Jurisdiction of Constitutional Court

(1)…,.

(2) Subject to this Constitution, only the Constitutional Court may —

(a)…,.;

(b) Hear and determine disputes relating to election to the office of President;…,.”

Section 93 of the Constitution provides:

“93 Challenge to presidential election

(1) Subject to this section, any aggrieved candidate may challenge the validity of an election of a President or Vice-President by lodging a petition or application with the Constitutional Court within seven days after the date of the declaration of the results of the election.

(2) The election of a Vice-President may be challenged only on the ground that he or she is or was not qualified for election.

(3) The Constitutional Court must hear and determine a petition or application under subsection (1) within fourteen days after the petition or application was lodged, and the court's decision is final.

(4) In determining a petition or application under subsection (1), the Constitutional Court may —

(a) Declare a winner;

(b) Invalidate the election, in which case a fresh election must be held within sixty days after the determination; or

(c) Make any other order it considers just and appropriate.

(5) If, in a petition or application under subsection (1) —

(a) The Constitutional Court sets aside the election of a President, the election of the President's two Vice-Presidents is automatically nullified;

(b) The Constitutional Court sets aside the election of either or both Vice Presidents, the President must, without delay, appoint a qualified person or qualified persons, as the case may be, to be Vice-President or Vice-Presidents.”

Section 94 of the Constitution provides:

“94 Assumption of office by President and Vice-Presidents

(1) Persons elected as President and Vice-Presidents assume office when they take, before the Chief Justice, or the next most senior judge available, the oaths of President and Vice-President respectively in the forms set out in the Third Schedule, which oaths they must take —

(a) On the ninth day after they are declared to be elected; or

(c) In the event of a challenge to the validity of their election, within forty-eight hours after the Constitutional Court has declared them to be the winners.”

Zimbabwe is a constitutional democracy practising a representative system of government. By the exercise of their sovereign authority, the people of Zimbabwe made the Constitution in terms of which they established elective public offices. They vested the offices with powers of government, to be exercised in accordance with the Constitution, or any other law, on their behalf and for their benefit.

Under the Constitution, an election to an elective public office is regarded as a central institution in a democratic society practicing a representative form of government.

It is by an election that is freely and fairly held in accordance with the tenets of the Constitution and the provisions of the Electoral Act (the Electoral Law) that Zimbabwean citizens can directly or indirectly, through freely chosen representatives, take part in the government of their affairs.

An electoral system based on free, fair, and regular elections to elective public offices established by the Constitution, or any other law, is one of the principles of good governance which bind the State and all institutions of Government at every level.

Under section 67(3) of the Constitution, every Zimbabwean citizen who is of or over eighteen years of age is, subject to the Constitution, guaranteed a right to vote in all elections and referendums to which the Constitution or any other law applies.

Section 67(1)(a) of the Constitution confers on every Zimbabwean citizen, without any reservation and regardless of voting status, the right to free, fair, and regular elections for any elective public office established in terms of the Constitution or any other law.

It is when all measures have been taken by public officials responsible for conducting an election in accordance with the Electoral Act (the Electoral Law) to ensure that the election is violence-free and all the necessary mechanisms for voters to cast their vote freely in secret have been put in place, that the right of every Zimbabwean citizen to a free, fair, and credible election is secured and the person elected has the right to hold office.

So a free, fair, and credible election for any elective public office is an essence of democratic self-government.

The office of President is an elective public office established by the Constitution. Executive powers are assigned to the office to be held in the interest of Zimbabwean citizens and used for their benefit. By virtue of section 67(1) of the Constitution, every Zimbabwean citizen has the right to a free, fair, and credible election of a President, expressing the will of the people.

By virtue of section 67(1) of the Constitution, every Zimbabwean citizen who is of or over eighteen years of age has a right to vote in an election of a President and to do so in secret.

Section 93(1) of the Constitution is based on a presumption of validity of the election of the President forming the subject of the petition or application lodged with the Constitutional Court.

Challenging the validity of the election of a President, in terms of section 93(1) of the Constitution, is as much an act of democratic self-government as acting in accordance with the Constitution and the Electoral Act (the Electoral Law) to ensure free, fair, and credible elections.

The investigation by the Constitutional Court, in terms of section 93(3) of the Constitution, to establish the truth of what happened in the election, and the giving of a final and binding decision on the validity or invalidity of the election, is a protection of the right of every Zimbabwean citizen to a free, fair, and credible election of a President.

The meaning of section 93(3) of the Constitution is that the Court must inquire into and establish whether the alleged acts of corrupt practices, irregularities or acts, on which the validity of the election is impugned, happened.

If acts are found to have happened, the Constitutional Court must inquire into the question whether they materially affected the validity of the election.

The finding of the truth or falsity of the allegations of fact on which the petition or application is based would require the hearing of evidence, and evaluation and assessment of it, in accordance with the competent rules of analysis.

The question for determination is whether or not the provisions of section 93 of the Constitution include a right to withdraw a petition or application lodged with the Constitutional Court challenging the validity of an election of a President.

The Constitutional Court holds, that, a right of withdrawal of a petition or application lodged with it under sub section (1) is not expressly provided for under section 93 of the Constitution and cannot be implied from the terms of those provisions.

There is no other provision of the Constitution or the Electoral Act (the Electoral Law) which gives a petitioner or applicant who challenges the validity of an election of a President, in terms of section 93(1) of the Constitution, the right to withdraw the petition or application once lodged with the Constitutional Court.

The reasons for this decision are these.

The exercise of the right of petition or application provided for under section 93(1) of the Constitution is limited.

Locus standi in judicio for the exercise of the right is limited to an aggrieved candidate. No other person has a right, under section 93(1) of the Constitution, to lodge a petition or application with the Constitutional Court challenging the validity of an election of a President.

The exercise of the right is also restricted as to the subject matter the petition or application can address. It can only be based on grounds which materially affect the validity of the election.

There is a presumption of the validity of the election.

For that reason, the grounds on which the petition or application is based must be clearly and precisely pleaded to bring out the alleged invalidity of the election and its basis.

The requirement that the petition or application must be based on grounds which challenge the validity of the election of a President imposes a vital limit to the exercise of judicial authority under section 93(3) of the Constitution.

The Constitutional Court is not to concern itself with isolated grievances which have no effect on the validity of the election. This is because the Constitution's design has left the election of a President to the people. It is only when an aggrieved candidate challenges, by a petition or application, the validity of the election and raises a legal question of exceptional public importance that it becomes the “unsought responsibility” (to borrow the phrase from Bush v Gore 531 US 2000) of the Constitutional Court to provide an effective and urgent resolution of the dispute it would have been forced to confront.

Section 93 of the Constitution enacts the principle, that, an election can only be declared invalid and set aside upon clear proof of facts of commission of prohibited conduct which materially affect the validity of an election.

It is also a limitation on the exercise of the right of petition or application under section 93(1) of the Constitution that the petition or application must be lodged with the Constitutional Court within seven days after the date of the declaration of the results of the election.

It is of note, that, so far, only the positive acts connected with the preparation, definition of subject-matter, and the lodgement of the petition or application are provided for.

What is guaranteed is the right of access by the aggrieved candidate who meets the prescribed requirements to the Constitutional Court to seek redress of his or her grievances.

The right of petition or application is conferred on an aggrieved candidate and protected under section 93 of the Constitution as a legal remedy for the protection of the right guaranteed to every citizen under section 67(1) of the Constitution to free, fair, and regular elections for any elective public office established in terms of the Constitution or any other law and exercised in accordance with the provisions of the Electoral Act (the Electoral Law).

The office of President is an elective public office established by the Constitution.

Every Zimbabwean citizen, regardless of voting status, has a fundamental right to a free, fair, and credible Presidential election. In other words, he or she has a right to a valid election of a President held in accordance with the relevant provisions of the law governing the conduct of the election.

An aggrieved candidate is a registered voter who shares with all other Zimbabwean citizens the right to a free, fair, and credible election of a President.

It is the alleged commission, by the respondents, in the election, of corrupt practices and/or irregularities prohibited under the provisions of the Electoral Act (the Electoral Law) which materially affects the validity of the election, in violation of the fundamental right of every Zimbabwean citizen to a free, fair, and credible election of a President, that constitutes the subject matter of the petition or application lodged with the Constitutional Court under section 93(1) of the Constitution.

What is not to be overlooked when interpreting the provisions of section 93 of the Constitution is the fact, that, they set up a procedural mechanism, the purpose of which is the protection of the fundamental right of every Zimbabwean citizen to a free, fair, and credible election for the public office of President.

It is a procedural mechanism, the implementation of which is intended to uphold the fundamental principle of the rule of law on which Zimbabwe is founded.

The Constitutional Court is enjoined, in the discharge of its duties under section 93(3) of the Constitution, to hold firmly in its mind, and act in accordance with the value fundamental to any democratic society, that, the basis of authority of a representative government to govern is free, fair, and regular elections.

There are, of course, many factors, the consideration of which point to the conclusion, that, a right to withdraw a petition or application lodged with the Constitutional Court, under subsection (1) of section 93 of the Constitution, challenging the validity of an election of a President, is not provided for under section 93 of the Constitution.

The preferred rule of interpretation is that all relevant provisions having a bearing on the subject for interpretation must be considered together as a whole in order to give effect to the objective of the Constitution, taking into account the nature and scope of the rights, interests, and duties forming the subject-matter of the provisions.

Section 93 of the Constitution must be considered as one whole and all other provisions which have a bearing on its true meaning must be brought into view and considered so as to enforce the spirit and underlying values of the Constitution.

The provisions of section 93 of the Constitution are designed so as to embody a structural and functional connection between the subject matters of the rights and obligations provided for and those provisions of the Electoral Act (the Electoral Law) which prohibit corrupt practices and irregularities in the election which materially affect the validity of the election.

As a result, the subject-matters of the procedural rights and obligations provided for under section 93 of the Constitution are an enforcement of the provisions of the Electoral Act (the Electoral Law) which proscribe corrupt practices and/or irregularities, the commission of which materially affects the validity of an election of a President.

The essential elements of a petition or application lodged under section 93 of the Constitution do not only provide a basis of the vital link between the procedural rights and obligations under the fundamental law and the provisions of the Electoral Act (the Electoral Law), they also define the scope, content, and effect of the subject matters of those rights and obligations.

The right of petition or application is given to an aggrieved candidate to enable him or her to take the grievance to the only court that has the power to hear him or her on the matter.

Implicit in section 93 of the Constitution is a rule, that, a petition or application lodged with the Constitutional Court under sub-section (1) is a legal document which meets all the requirements of validity and triggers the imposition of the obligation on the Court and other parties to the proceedings.

The lodgment of the petition or application, under section 93(1) of the Constitution, does not only commence proceedings, it gives the petitioner or applicant the right to be heard by the Constitutional Court in his or her cause.

It imposes on the Constitutional Court the reciprocal obligation to hear and determine the petition or application.

In the absence of an express provision for a right of withdrawal of the petition or application, the immediacy of the direct connection between the right to be heard and the corresponding obligation on the Constitutional Court to hear and determine the petition or application lodged with it under section 93(1) of the Constitution excludes the right of withdrawal of the petition or application from the application of the provisions of section 93(3) of the Constitution.

The direct connection between the right of the petitioner or applicant to be heard following the lodgement of the petition or application and the corresponding obligation on the Constitutional Court to hear and determine the petition or application is not established by construction taking into account the provisions for the jurisdiction of the Constitutional Court under section 167(2)(b) of the Constitution.

It is expressly provided for by section 93(3) of the Constitution, which imposes on the Constitutional Court an obligatory duty to hear and determine the petition or application.

Section 93(3) of the Constitution provides that the Constitutional Court “must hear and determine the petition or application lodged under subsection (1) within fourteen days after the date of lodgment.”

The word “must” is not used to mark only the obligation in respect of the time limit within which the acts designating the duty imposed must be carried out. The word is also used to indicate to the Constitutional Court that it is under an obligation to treat the petition or application in the manner prescribed and not in any other way.

What is imposed is a duty to obey the order first.

Obedience is doing that which is required by the law. In other words, the women and men exercising judicial authority must appreciate the meaning of the provisions to the effect, that, the Court with the power with which they are imbued “must hear and determine” the petition or application lodged with it. The word must surely mean more than that the Constitutional Court has power to hear and determine the petition or application. The words speak to an obligatory duty to exercise the jurisdiction the Constitutional Court has. The words state an obligation, the performance of which was a carefully chosen means to a particular end.

For the Constitutional Court to acquire full knowledge of the facts in issue, which is necessary if the final and binding decision required to result from the entire proceedings is to be made, taking into account the fundamental principles of justice, transparency, and accountability, it has to hear and determine the petition or application.

Considering that the Constitutional Court, which is the final court in the land, has been given original and exclusive jurisdiction on all matters relating to an inquiry into the validity of an election of a President brought to it by means of a petition or application, it makes sense to require it to acquire full knowledge of the facts before making a final and binding decision on the validity or invalidity of the election of a President.

The intention was obviously to reduce the risk of an erroneous decision to a more tolerable minimum: hence, the requirement that all nine Judges of the Court must sit to hear and determine a petition or application challenging the validity of an election of a President.

The Constitutional Court would have no choice but to “hear and determine” the petition or application lodged with it under section 93(1) of the Constitution. It cannot put itself, or let itself be put, in a position in which it is unable to hear and determine the petition or application.

A petition or application can be heard and determined when it is extant at the time of hearing.

When exercised, the right to withdraw the petition or application would have the effect of removing the petition or application from the exercise by the Constitutional Court of its jurisdiction.

That would prevent the Constitutional Court from discharging the obligatory duty imposed by section 93(3) of the Constitution. The Court would be in breach of the Constitution.

The purpose of the procedural mechanism provided for under section 93 of the Constitution is to secure a just, fair, final, and binding decision by the highest court in the land on the merits of the question of the validity or invalidity of an election of a President, raised in a petition or application lodged under subsection (1) within fourteen days after the lodgement.

It is clear, that, the final and binding decision on the validity or invalidity of the election of a President is required to be based on the merits of the case.

Section 93(3) of the Constitution is based on the principle of natural justice, that, he who hears a cause or matter must determine it.

The mandatory hearing and determination of the petition or application on the merits is the means required to be used to produce the final and binding decision on the validity or invalidity of the election of a President.

A finding that withdrawal of the petition or application, is, in the circumstances, a right provided for under section 93 of the Constitution, would be contrary to the rule of interpretation requiring that effect be given to the purpose of the provisions under construction.

Adherence to the requirements of the procedure provided for under section 93(3) of the Constitution, by the Constitutional Court, in the exercise of the powers vested in it, is made a fundamental matter.

The primary purpose of the method of processing the petition or application lodged under section 93(1) of the Constitution, as provided for under section 93(3), is the establishment of the truth or falsity of the allegations of commission of corrupt practices and/or irregularities made against the respondents.

It is the people who, in the exercise of their sovereign authority, decided that when a petition or application is lodged with the Constitutional Court, challenging the validity of an election of a President, they are entitled to know the truth about the allegations on the basis of which the validity of the election is impugned. They decided, in their wisdom, that, the most effective means of getting to the bottom of the allegations of electoral impropriety was a hearing and determination of the petition or application on the merits, by the highest court in the land, which would produce a final decision binding on all Zimbabwean citizens.

The Constitutional Court is under a duty to respect the judgment of the people and carry out the mandate in the manner prescribed to achieve the intended objective.

The hearing and determination of the petition or application, which the Constitutional Court is enjoined to undertake, would involve receiving evidence on the facts in issue presented by the parties in affidavit form, hearing oral or written arguments by or on behalf of the parties, evaluating and assessing the evidence in accordance with the competent rules of analysis, and making findings on the truth or falsity of the facts in issue.

Considering that the procedure provided for is the only one by which the jurisdiction of the Constitutional Court can be exercised under section 93 of the Constitution and that it is the only way in which the petition or application lodged under sub section (1) can be brought to an end, the final and binding decision envisaged under section 93(3) of the Constitution can only be one determining the petition or application on the merits.

It is a requirement, under section 93(3) of the Constitution, that, the petition or application be brought to an end by a judgment of the Constitutional Court as opposed to being brought to an end by means of a unilateral decision and actions of a petitioner or applicant to withdraw the petition or application.

It is not a decision that would be based on the reason given by the petitioner or applicant for withdrawing the petition or application. It would be a decision based on the results of the evaluation or assessment by the Constitutional Court itself of the evidence and arguments presented by the parties and findings of the facts in issue.

A final decision can only mean that all the issues raised by the petition or application have been determined or litigated on the merits.

Determination of the petition or application can only be by the Constitutional Court.

Withdrawal of the petition or application would determine nothing. It cannot be a judgment of the Constitutional Court, which is the only means by which a petition or application lodged under section 93(1) of the Constitution is required to be brought to an end.

In prescribing what the Constitutional Court has to do to ensure the achievement of the objective pursued, the people would not have included acts the performance of which would in effect have prevented the achievement of the objective.

In any case, one cannot withdraw what one has no control over.

Every right must be traceable to a particular provision of the Constitution or any other law.

It is one of the principles of Constitutional Law, that, every right is conferred for protection by, and, except in instances of private law, against the State.

In a constitutional democracy, Government is relevant to the extent that it uses the collective power the people entrusted it with to protect and promote their rights.

The use of the words “subject to this section” at the beginning of section 93 of the Constitution means that nothing should be done by the State in the exercise of the powers provided for to infringe the rights for the protection of which the procedural mechanism was set up.

Rights, like powers, can be provided for expressly or impliedly.

If withdrawal of a petition or application lodged under section 93(1) of the Constitution was intended to form part of the rights protected under the provisions of section 93 of the Constitution, it would have been expressly provided for under that section as a separate and distinct right from the right to petition or apply for redress of grievances relating to the alleged invalidity of an election of a President.

The right cannot be inferred from the concept of fundamental liberty, which is one of the fundamental values on which a democratic society is based.

The reason is that, as a right, it would have been conferred for protection by the State. It would be the subject of regulation by the Constitution. The need for an express provision for a right to withdraw the petition or application is the more apparent when regard is had to the fact, that, conditions for the exercise of the right may vary from a provision that the withdrawal can be done at any time to a provision that it can only be done on the authority of the Constitutional Court upon a special application.

The latter requirements create conditions for a withdrawal not in conformity with the prescribed procedure.

In this case, there is no withdrawal to talk about. There is nothingness.

As there is no express provision, in section 93 of the Constitution, for the right of withdrawal of a petition or application lodged under subsection (1), there is no need to try and establish the right by necessary implication.

A right to withdraw a petition or application would not form part of the right to petition or apply for redress of grievances. It cannot, for example, be implied as a part of the right to petition or apply for redress of grievances, as the right to food, the right to clothing, and the right to reasonable accommodation have been implied from the right to life.

It would not even be necessary to seek to establish the right of the withdrawal of the petition or application by the application of the necessary implication rule: see Ferrera v Levin NO and Ors 1996 (1) SA 984 (CC)…,.

The rule is that where withdrawal of a petition or application for redress of grievances in which the public has an interest is not expressly provided for, the intention is to exclude it.

There is also the principle that every provision of a Constitution has an historical source to be taken into account.

The historical root of the principle embodied in section 93 of the Constitution, excluding the right to withdraw a petition or application lodged under sub section (1), challenging the validity of an election of a President, lies in the electoral laws that have governed the conduct of elections in the country.

Immediately before the Constitution came into effect, on 22 May 2013, it was a longstanding principle of law in the jurisprudence of this country, that, a petition presented to an Electoral Court complaining of an undue election or an undue return to the office of President was not subject to a right of withdrawal.

The principle was the basis of the provisions of section 111(4) of the Electoral Act (the Electoral Law) and its predecessors.

Mr Mehta sought to rely on section 178(1) of the Electoral Act (the Electoral Law) to support the argument, that, a petition or application lodged under section 93(1) of the Constitution is subject to a right of withdrawal.

Section 178(1) of the Electoral Act (the Electoral Law) provided that an election petition presented to an Electoral Court complaining of an undue election or an undue return of a person elected to a public office may be withdrawn at any time.

Section 111 of the Electoral Act (the Electoral Law) made provision for presentation to the Electoral Court of an election petition complaining of undue election or an undue return of a person to the office of President.

Section 111(4) of the Electoral Act (the Electoral Law) made it clear, that, the provisions of section 178(1) of the Electoral Act were not applicable to an election petition presented to the Electoral Court under section 111(1) of the Electoral Act.

This exclusionary formula had been applied by similar provisions of successive Electoral Acts in this country for many years.

The provision was conformable to the former Constitution.

The effect of exclusion of the right of withdrawal of a petition or application challenging the validity of an election of a President is greater protection to that election than is provided for an election the petition or application challenging the validity of which is subject to a right of withdrawal.

Both methods are essences of democratic self-government.

The manner in which the provisions of section 93 of the Constitution are drafted demonstrates that the framers of the Constitution were aware of the existence of the principle on which section 111(4) of the Electoral Act (the Electoral Law) was based.

They elevated that principle to a constitutional principle on the understanding that it excluded from the rights conferred and protected by section 93 of the Constitution the right to withdraw a petition or application lodged with the Constitutional Court under sub-section (1).

The rationale for excluding a right of withdrawal of a petition or application lodged with the Constitutional Court under subsection (1) of the provisions of section 93 of the Constitution lies in the strength of the public interest in an election of a President which may be harmed by the withdrawal of the petition or application.

The public interest in the establishment of the truth or falsity of allegations of invalidity of an election of a President was given primary recognition and effect at the expense of the individual right of the petitioner or applicant to withdraw the petition or application at any time.

Every constitutional democracy sets great value on the office of President in the distribution of the powers of the State.

By the Constitution, the people, in the exercise of their sovereign authority, designated the office of President as one of the most important offices. They assigned to the office of President powers, by the lawful exercise of which they committed themselves to be governed in accordance with the conditions they prescribed. An election of a President is therefore a central institution for securing democratic self-government. By the election, the people choose the person who will exercise the powers of self-government for their benefit.

Under the Constitution, executive authority is vested in the President.

He or she exercises the powers, subject to the Constitution, through a Cabinet of Ministers made up of women and men of his or her own choice.

The person elected to the office of President becomes the Head of State and Government and Commander-in-Chief of the Defence Forces.

The President is not just the leader of the Government in power.

An election of a President in Zimbabwe is a popular affair, in that every citizen registered on a voters roll at ward and constituency level countrywide is eligible to vote for a President. A Presidential candidate is required to receive at least half plus one vote (51% threshold) of all the valid votes cast in the election to be entitled to a declaration as the winner.

Once chosen, in a free, fair, and credible election, a President assumes an office with enormous powers which he or she is required to exercise in accordance with the Constitution or any other law. He or she is under a duty to represent every Zimbabwean citizen regardless of whether or not he or she voted him or her into power.

An election of a President is bound to generate profound public interest, not necessarily measured by the number of votes cast in the election. Stakes are very high and political tensions may rise to levels that threaten public order and national security.

The election of a President is not just about finding an answer to the question who of the candidates should be the leader of the Government. It is about choosing a leader who will have the interests of all Zimbabwean citizens at heart and has the intellectual ability to exercise the powers of the office in accordance with the fundamental principles and values on which a democratic society is based to change the lives of the people for the better.

By the very nature of the circumstances in which it arises, a petition or application challenging the validity of an election of a President alleging that the President-elect stole the election requires effective and urgent determination on the merits.

It is indicative of simmering political tension and potential disturbance of public peace and tranquility.

The cause is the very fact, that, those who would have voluntarily taken part in the electoral process, convinced that the rules by which they act guarantee the validity of the electoral outcome, challenge it as losers.

The framers of the Constitution understood, that, in this world of men and women, there are those unscrupulous enough, and skillful enough, to use falsehood disguised as a genuine challenge of the validity of an election of a President as an effective political tool to undo an otherwise free, fair, and credible election.

A petition or application challenging the validity of an election of a President may be a predatory action aimed at preventing ascendancy into power by the winner.

The use of a known lie, as a tool for political ends, to undo the outcome of an otherwise valid election, is, at once, at odds with the premises of democratic government and the orderly manner in which political change is effected: see Mcdonald v Smith 472 US 479 (1985)…,.

The framers of the Constitution were also aware of the provision of the Electoral Act (the Electoral Law) prohibiting corrupt practices and irregularities in an election for public office which materially affect the validity of the election. They were conscious of the fact, that, elections can be stolen. They were acutely aware of the possibility that a candidate who cries foul after losing an election may, after all, have the truth on his or her side.

The people decided, that, an uninterrupted judicial investigation of the merits of the alleged invalidity of an election of a President would produce results that are consonant with public peace and tranquility.

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

This was an appeal from a decision of the Magistrate's Court. We dismissed it soon after argument and gave reasons ex tempore. The appellant has now sought written reasons.

In the court a quo, the respondent, hereafter referred to as “the purchaser” where appropriate, sued for specific performance in respect of a property that she had bought from the appellant in terms of a written agreement of sale.

She proceeded by way of a court application.

The draft order, apart from costs, sought an order directing the appellant, hereafter referred to as “the seller” where appropriate, to sign forthwith all the documents necessary to enable transfer of the property to herself, failing which the Messenger of Court should be empowered to stand in his stead and sign.

She said, in terms of the agreement, the parties had consented to the jurisdiction of the Magistrate's Court.

In his notice of opposition, the appellant took a point in limine, that, the remedy sought was not one contemplated by the Agreement of Sale. He said in terms of it, in the event of a breach by himself, the only remedy available to the respondent was cancellation of the agreement upon a prior demand to make good the breach within 14 days, and that this had not been done.

He said specific performance was a remedy alien to the written agreement.

An adjunct to the above objection was that, in terms of the Magistrates Court Act [Chapter 7:10], a Magistrates Court has no jurisdiction to grant specific performance in the absence of an alternative claim for damages. He cited section 14(1)(d) of the Magistrates Court Act.

On the merits, the appellant's basic defence was that the respondent had only paid part of the purchase price; that, as such, she was in breach of the Agreement of Sale; and that therefore she was not entitled to specific performance. He prayed for the dismissal of the application with costs.

The court a quo felt there was a dispute of fact that was incapable of resolution on the papers. It referred the matter to trial.

After a full scale trial, the court a quo found in favour of the respondent and granted specific performance.

The appellant appealed.

We felt the appeal had no merit. We dismissed it as aforesaid....,.

The appellant went to town about a patently harmless error in clause 15 of the agreement of sale which cited a wrong section in the Magistrates Court Act [Chapter 7:10] as being the one in terms of which litigants can consent to the jurisdiction of that court even though the claim might exceed its monetary jurisdictional limit.

Clause 15 of the agreement said in part:

“Both parties hereby consent, in terms of section (13)(1)(c) (sic) of the Magistrate's Court Act Chapter 18 (sic), to the province of Masvingo, held at Masvingo in respect of any action or matter arising out of this Agreement, notwithstanding that such action or the foregoing, the Seller shall have the right to institute such proceedings in the High Court of Zimbabwe should he/she elect to do so.”

To that, the appellant's argument was…,.:

“The parties signed an Agreement of Sale where they consented to a Magistrate's Court sitting at Masvingo in terms of section 13(1)(c) of the Magistrate's Court Act, Chapter 18. The Respondent's lawyers used the copy of the contract to found jurisdiction of the court a quo.

On the date of signing, March 2015, the statutes had been amended and there was no longer section 13(1)(c) of the Magistrate's Court, Chapter 18.

No amendment was done and before the matter was referred to trial, this point was raised by the Appellant but dismissed by the Learned Magistrate.

Hence, in principle, the court a quo, as at the date of hearing the application and trial, lacked jurisdiction to deal with the matter where specific performance was sought without alternative to damages, in contravention of section 14(1)(d) of the Magistrates Court Act (Chapter 7:10).”

The appellant's argument was all mixed-up.

In terms of SI163 of 2012, (Magistrates Court [Civil Jurisdiction] [Monetary Limits] Rules, 2012), the monetary civil jurisdiction of the magistrates is $10,000 for, among others, actions for the delivery of movables or immovables.

In terms of section 11(1)(b)(ii) of the Magistrates Court Act, the magistrate's court is conferred with jurisdiction, where the delivery or transfer of any property, movable or immovable, is claimed, if the value of such property does not exceed such amount as may be prescribed in Rules (i.e. $10,000), whether in lieu of, or in addition to, any other claim, which shall include a claim for the cancellation of any agreement relating to such property.

The appellant made no reference at all to the proviso to paragraph (b) of section 11(1) of the Magistrates Court Act.

That proviso expressly confers jurisdiction on the court to try any action or case referred to in, among others, subparagraph (ii) above, otherwise beyond its jurisdiction if the defendant has consented thereto in writing.

It is all very clear.

But, of course, the appellant's argument was premised on section 14 of the Magistrates Court Act [Chapter 7:10].

This section gives instances when the court has no jurisdiction.

One such is in subsection (1)(d). In terms of it, the court has no jurisdiction where the specific performance of an act is sought without an alternative claim for damages.

But, characteristically, the appellant ignored the proviso thereto. It says:

“Provided that a court shall have jurisdiction to order (among other things) the delivery or transfer of property, movable or immovable, not exceeding such amount as may be prescribed in rules.”

The mistaken reference, in the parties agreement of sale, to a non-existent section 13(1)(c) of the Magistrates Court Act was of no moment.

The fact remains, that, in terms of the Magistrates Court Act, a defendant can consent to the jurisdiction of the Magistrate's Court - even where the plaintiff's claim exceeds that court's monetary jurisdiction.

In the present case, both parties had given their advance consent, on the signing of the agreement of sale, even though their reference to the specific provision as permitting such consent was erroneous.

That could not have been a reason to non-suit the respondent.

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Jurisdiction re: Implied Jurisdiction or Jurisdiction By Implication and Submission to Jurisdiction

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

HH38-08 : IAN MAKONE vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and REGISTRAR-GENERAL OF VOTERS
Ruled By: UCHENA J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA
Ruled By: HLATSHWAYO J and MAWADZE J

SC81-14 : JORAM NYAHORA vs CFI HOLDINGS ( PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O.
Ruled By: MATHONSI J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

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Law Portal Zimbabwe

Jurisdiction re: Implied Jurisdiction or Jurisdiction By Implication and Submission to Jurisdiction

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA Ruled By: GOWORA J and PATEL J

HH38-08 : IAN MAKONE vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and REGISTRAR-GENERAL OF VOTERS Ruled By: UCHENA J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA Ruled By: HLATSHWAYO J

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS Ruled By: CHIWESHE JP

HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA Ruled By: HLATSHWAYO J and MAWADZE J

SC81-14 : JORAM NYAHORA vs CFI HOLDINGS ( PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING Ruled By: MAKONI J

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O. Ruled By: MATHONSI J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS Ruled By: GARWE JA, PATEL JA and MAKONI JA

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED Ruled By: PATEL J

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI Ruled By: MAWADZE J and MAFUSIRE J

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Law Portal
Zimbabwe

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

HH38-08 : IAN MAKONE vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and REGISTRAR-GENERAL OF VOTERS
Ruled By: UCHENA J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA
Ruled By: HLATSHWAYO J and MAWADZE J

SC81-14 : JORAM NYAHORA vs CFI HOLDINGS ( PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and PATEL JA

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

HB172-16 : STANLEY MASUMBA vs COLLEN TSHAYANA and PROVINCIAL MINING DIRECTOR - MIDLANDS and MINISTER OF MINES AND MINING DEVELOPMENT N.O.
Ruled By: MATHONSI J

SC16-19 : AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY vs FRANCIS BAURENI and 18 OTHERS
Ruled By: GARWE JA, PATEL JA and MAKONI JA

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J